ASHARFI DEVI Vs. TIRLOK CHAND

JUDGEMENT

(1.) MANOHAR Lal, who was the last holder of the property in dispute, executed a will on 3rd January 1927 in favour of his wife Mst. Asharfi Devi bequeathing his entire property, with the exception of one pukhta haveli, to her. It was stated in the will that Prem Chand defendant-respondent had been living with him and that he desired to perform the ceremony of his adoption on 6th February 1927. Even after the adoption ceremony, Mst. Asharfi Devi was to be the full owner of the entire property and if the relations became strained between her and Prem Chand, then she was to pay Rs. 5,000/- to him for purposes of business. After Mst. Asharfi's death, Prem Chand was to be the full owner of the entire property of every description. This will was attested by two witnesses, Shiv Dhian Singh and nand Kishore and it was presented for registration by Manohar Lal, who appeared before Neki Ram Sub-Registrar on 8th January 1927, the Sub-Registrar's endorsement being of the same date. Indeed the will was also registered on the same day. Manohar Lal died on 17th August 1950 leaving behind Mst. Asharfi devi, his widow, and Prem Chand, the adopted son who had a son of the name of rajinder Kumar. On the death of Manohar Lal, the agricultural land belonging to the deceased was mutated in the name of Prem Chand who got rent deeds executed in his favour in respect of the urban immoveable property. Necessary entries were also made in his favour in the records of the Municipalities of Sonepat and Delhi. It is a common ground that Mst. Asharfi Devi and Prem Chand were residing in the same house when on 18th February 1952 the latter sold 50 bighas 17 biswas of agricultural land to defendants 2 to 6 for a sum of Rs. 35,000/ -. On the 7th October 1952 he mortgaged 2 bighas 6 biswas of land to Mst. Sukhman defendants No. 7 for rs. 6,500/ -. He remained in possession himself of that land as a tenant. Tirlok chand defendant No. 1 had a money decree against Prem Chand defendant No. 8 and in execution of that decree he got attached houses, the plans of which are exhibits P 14 and P. 15 and agricultural land comprising an area of 78 bighas odd. On 1st February 1954 Mst. Asharfi Devi field a suit out of which the present appeal has arisen for possession of the land which had been sold to defendants 2 to 6 and for declarations to the effect that the mortgage created by Prem Chand defendant no. 8 in favour of Mst. Sukhman defendant No. 7 was null, void, ineffective and unenforceable against her and that the agricultural land and residential property mentioned in paragraphs 1 and 2 of the plaint were owned and possessed by her and Prem Chand had no connection with them and those properties were not liable to attachment and sale in execution of the decrees against Prem Chand. The principal plea of the plaintiff, Mst. Asharfi Devi, was that by virtue of the will, exhibit P 16, she was the owner of the properties in dispute and Prem Chand defendant No. 8 had no right, title or interest in the same and could not have, therefore, alienated them nor could they be got attached and sold in execution of the decrees against the afore said defendant. In defence, a number of pleas were taken up but the, main points raised were that the suit property was joint family property and that the plaintiff could not acquire any rights under the will, the execution and validity of which was also challenged and that the transferees were entitled to the protection conferred by section 41. Transfer of Property Act.

(2.) THE trial Court found that the execution of the will by Manohar Lal deceased had been established but that its execution and attestation as required by section 63 of the Indian Succession Act, 1925, had not been proved. It was further found that only one house, the plan of which was Exhibit P. 23, was joint family property and that the rest of the property was self-acquired of Manohar Lal with the exception of another house, the plan of which was Exhibit P. 22, which has ancestral. In other words, it was found that if the will was valid, the plaintiff would acquire interest in the entire property left by her husband with the exception of the properties shown in the plan, Exhibits P. 22 and P. 23. It was also held that defendants 2 to 6 had purchased the land in question in good faith and for consideration and were protected by the provisions of section 41 of the Transfer of property Act, 1882. The same was the finding with regard to the land mortgaged with defendant No. 7. In the result, the suit was dismissed.

(3.) DURING the pendency of the appeal in this Court Mst. Asharfi Devi died on 20th march 1957. Rajinder Kumar son of Prem Chand defendant No. 8 applied through his guardian on 5th August 1957 for being impleaded as legal representative of mst. Asharfi Devi deceased on the basis of a will said to have been executed by her in his favour on 25th November 1953. The genuineness of this will was questioned on behalf of the respondents and on 29th November 1962 an order was made calling for a report from the trial Court with regard to the genuineness of the execution or otherwise of the will in favour of Rajinder Kumar. In the report dated 20th March 1963 it was found that the will had been duly executed by Mst. Asharfi Devi in favour of Rajinder Kumar. After considering the objections, legal and factual, raised on behalf of the respondents with regard to the aforesaid will, it was held by a Division Bench of this Court on 1st May 1964 that Rajinder Kumar was entitled to be substituted in place of Mst. Asharfi Devi appellant by virtue of the will in his favour.